246 SEARS ROAD REALTY CORPORATION, Plaintiff, v. EXXON MOBIL CORPORATION, Defendant 09-CV-889 (NGG) (JMA) United States District Court, E.D. New York Signed April 01, 2011 Counsel Patrick F. Young, Richard W. Young, Young & Young, LLP, 863 Islip Avenue, Central Islip, NY 11722, Attorneys for Plaintiff. Beth L. Kaufman, Deirdre Joan Sheridan, Schoeman, Updike & Kaufman, LLP, 60 East 42nd Street, 39th Floor, New York, NY 10165, Attorneys for Defendant. Azrack, Joan M., United States Magistrate Judge MEMORANDUM AND ORDER *1 On December 21, 2010, 246 Sears Road Realty Corporation (“plaintiff”) filed a motion to compel production of documents based on alleged deficiencies in Exxon Mobil Corporation’s (“defendant”) prior production of paper discovery. See generally Mot. to Compel, ECF No. 29 (extraneous duplicative motions on electronic docket omitted). Along with its opposition to this motion, defendant has cross-moved to strike the expert opinion of Yalkin Demirkaya, to obtain a protective order quashing a prior notice of deposition, and to obtain attorneys' fees and costs relating to the making of these motions. Mem. of Law in Opp. to Mot. to Compel and in Supp. of Mot. to Strike and Mot. for Protective Order (“Mem. in Opp. to Mot. to Compel”) 9, 21, 23, ECF No. 38. For the reasons detailed below, I order that: (1) plaintiff’s motion to compel is denied in its entirety; (2) defendant’s motion for a protective order is granted; (3) defendant’s motion to strike plaintiff’s expert opinion is granted; and (4) defendant’s motion for attorneys' fees and costs is granted to the extent that defendant is permitted to submit a particularized application for costs, to which plaintiff may respond. I. FACTUAL BACKGROUND Plaintiff commenced the instant action against defendant on March 9, 2009. Compl., ECF No. 1. Plaintiff’s complaint alleges that defendant breached an Access Agreement executed by the parties on December 1, 2005. Id. ¶ 22. The purpose of the Access Agreement was to allow defendant to enter plaintiff’s property in order to remediate an oil spill that occurred during defendant’s prior tenancy. Id. ¶ 8. Defendant subsequently counterclaimed for breach of the Access Agreement and unjust enrichment. See Amended Answer, Affirmative Defenses and Counterclaims ¶¶ 60, 68, ECF No. 7. On October 7, 2010, a conference was held to address a protracted discovery dispute between the parties in which plaintiff claims that defendant has deliberately failed to fulfill its discovery obligations under the Federal Rules of Civil Procedure. See Minute Entry of Oct. 7, 2010, ECF No. 28; Mot. to Compel 8. Despite continuous efforts by the Court to resolve this dispute without resort to motion practice, no resolution was reached. See Minute Entry of Oct. 7, 2010; Minute Entry of Aug. 19, 2010, ECF No. 25; Minute Entry of May 25, 2010, ECF No. 22. Therefore, on the insistence of plaintiff’s counsel, the Court granted plaintiff leave to file the instant motion to compel production of documents, and to defendant to file its opposition and instant cross-motions. Minute Entry of Oct. 7, 2010. The parties' respective motions and my orders thereupon are detailed as follows. II. THE PARTIES' DISCOVERY MOTIONS A. Plaintiff’s Motion to Compel Plaintiff’s motion to compel consists of six arguments: (1) defendant has failed to provide full and complete disclosure in response to plaintiff’s document requests; (2) defendant’s paper production is not “reasonably usable” pursuant to Federal Rule of Civil Procedure (“FRCP”) 34(b)(2)(E)(2); (3) due to alleged production deficiencies, defendant should be compelled to provide a sworn statement detailing its search methodology for all documents responsive to plaintiff’s requests; (4) due to alleged production deficiencies, defendant should be compelled to produce a copy of any legal hold instruction pertaining to this litigation and to forensically preserve responsive electronically stored information (“ESI”) for defendant custodians; (5) due to alleged production deficiencies, defendant should be compelled to provide the names of all custodians from whom ESI was collected together with corresponding bates number ranges per custodian; and (6) defendant should be compelled to provide the location of all relevant ESI as required by FRCP 26(a)(1)(A)(ii). Pl.'s Mem. of Law in Supp. of Its Mot. to Compel the Production of Documents (“Mot. to Compel”) 8–24, ECF No. 29. I discuss each of plaintiff’s arguments in turn. 1. Defendant’s Alleged Failure to Provide Full and Complete Disclosure *2 Firstly, the dominant underlying purpose of plaintiff’s motion to compel is to “show that the Access Agreement was a fraud.” Id. at 6. However, plaintiff’s complaint does not contain a fraud claim; rather, the complaint and defendant’s counterclaims are strictly limited to the parties' alleged breach of the terms of the Access Agreement. See generally Compl.; Amended Answer, Affirmative Defenses and Counterclaims. Therefore, plaintiff’s extensive effort to raise the unpleaded specter of fraud in its motion to compel has no bearing whatsoever on defendant’s discovery obligations in the case at hand. See Joint Discovery Plan ¶ 3, Mot. to Compel Ex. C. Secondly, plaintiff’s claim that defendant has failed to provide full and complete disclosure in response to document requests is purely speculative and wholly belied by the extensive time and effort already expended by defendant and the Court in responding to this claim prior to plaintiff’s motion. See, e.g., Letter from Deidre Sheridan, co-counsel for defendant, to Richard Young, co-counsel for plaintiff (“Deficiency Response”) (Oct. 1, 2010), Mot. to Compel Ex. R; see also Minute Entry of Discovery Hearing of Aug. 19, 2010, ECF No. 25; Minute Entry of Oct. 7, 2010. I now find, just as I did in October of 2010, that defendant’s itemized and detailed Deficiency Response satisfactorily accounts for every one of the deficiencies alleged by plaintiff. As defendant has now explained twice by, the documents plaintiff claims are missing do not exist, were not asked for by plaintiff, are not discoverable, and/or have already been produced. Mem. in Opp. to Mot. to Compel 13; see generally Deficiency Response. Plaintiff’s mere expectation and desire to see certain documents does not necessarily mean that such documents exist. Golden Trade v. Lee Apparel Co., 143 F.R.D. 514, 525 n.7 (S.D.N.Y. 1992) (“In the face of a denial by a party that it has possession, custody or control of documents, the discovering party must make an adequate showing to overcome this assertion.”). Plaintiff’s arguments that gaps of time between emails “give rise to a strong inference that Exxon is either withholding responsive emails or has engaged in spoliation,” and that there is an absence of “documents one would have expected to have been produced” are entirely speculative and devoid of concrete evidence. Mot. to Compel 9, 10. Contrary to plaintiff’s assertions, the fact that defendant has not produced certain documents does not mean that they possess them but are refusing to produce them. E.g. id. at 10. For instance, plaintiff argues that defendant’s non-production of the Corrective Action Plan (“CAP”) entered into between defendant and the New York State Department of Environmental Conservation (“NYSDEC”) evinces defendant’s willful failure to provide full and complete disclosure. See id. at 9. However, defendant neither contests that the CAP exists, nor denies that plaintiff is entitled to it; defendant merely maintains that a “search of its hard copy and electronic files has not uncovered [the CAP].” Mem. in Opp. to Mot. to Compel 14. Furthermore, plaintiff could very well have already obtained the CAP, as it should be freely obtainable from the NYSDEC in the same manner by which plaintiff has already served a Freedom of Information Act request on the New York City Department of Buildings. Reply Decl. of Richard W. Young, Esq. ¶ 19, ECF No. 32; see also Fed. R. Civ. P. 26(b)(2)(C)(ii) (noting courts must limit discovery when “the party seeking discovery has had ample opportunity to obtain the information by discovery in the action....”). Plaintiff’s claim that some 166 attachments to 90 emails are missing is likewise baseless. Id. Defendant’s Deficiency Response explains in detail why these attachments were never included with certain emails as they originally existed, have in fact been produced by defense counsel in conjunction with other related emails, or have never been in defense counsel’s possession. See Mem. in Opp. to Mot. to Compel 16–17. Plaintiff fails to offer any evidence beyond the mere opinion of its counsel and expert witness that many of these documents even exist. Plaintiff’s naked accusations of spoliation, bad faith, and fraud on the part of defendant fall woefully short of meriting an order to compel production, especially when defendant has repeatedly confirmed, in writing and in telephone conversations, that their production is complete.[1] Sheridan Decl. Exs. 1, 5, and 7. *3 Finally, plaintiff is not entitled to documents from defendant dated prior to May of 2004, the time at which the parties executed the Access Agreement. Mot. to Compel 10–11. All of plaintiff and defendant’s pleaded claims arise out of the terms of the Access Agreement. As such, there is no justification for allowing plaintiff to engage in discovery as to an unpleaded fraud claim arising prior to execution of the Access Agreement.[2] 2. The Adequacy of Defendant’s Paper Production Plaintiff claims that defendant’s production of documents entirely in paper form is not “reasonably usable” pursuant to FRCP 34(b)(2)(E)(2), and that “it is improper to convert an electronically searchable document to a form which either destroys or degrades the document’s ability to be searched.” Pl.'s Reply Mem. 7. Plaintiff therefore requests that defendant be directed to provide already produced ESI, as well as all other ESI responsive to plaintiff’s document requests, in its native format and with corresponding metadata.[3] Mot. to Compel 19. In support of this request, plaintiff cites to several cases in which courts have noted that “data ordinarily kept in electronically searchable form ‘should not be produced in a form that removes or significantly degrades this feature.’ ” E.g., In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., No. MD 05-1720 (JG) (JO), 2007 WL 121426, at *4, 2007 U.S. Dist. LEXIS 2650 at *14 (E.D.N.Y. Jan. 12, 2007) (quoting Fed. R. Civ. P. 34(b), 2006 Amendment, Advisory Committee’s Note). At the same time, a court must limit discovery if it determines, inter alia, that “the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C). As already discussed supra, plaintiff’s main justification for demanding digital reproduction of responsive ESI is to bolster its hypothetical and unpleaded fraud claim. As such, the native format documents and metadata sought by plaintiff are of minimal, if any, value to resolving the existing issues in this litigation. *4 More importantly, however, plaintiff mistakenly minimizes the importance of the parties' Joint Discovery Plan. The full sentence from FRCP 34(b)’s 2006 Amendment to the Advisory Committee’s Note cited by plaintiff reads that, “[i]f the form of production is not specified by party agreement or court order, the responding party must produce electronically stored information either in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.” Fed. R. Civ. P. 34(b), 2006 Amendment, Advisory Committee’s Note (emphasis added). In July of 2009, the parties executed a Joint Discovery Plan, which specifically notes with regard to ESI that, “such information shall be produced in the form most readily and reasonably accessible by the producing party.” Joint Discovery Plan ¶ 6, Mot. to Compel Ex. C (emphasis added). As noted in Aguilar v. Immigration & Customs Enforcement Div., a case heavily relied upon by both parties, “if metadata is not sought in the initial document request, and particularly if the producing party already has produced the documents in another form, courts tend to deny later requests, often concluding that the metadata is not relevant.” 255 F.R.D. at 357. Furthermore, “if a party wants metadata, it should ‘Ask for it. Up front. Otherwise, if [the party] ask[s] too late or ha[s] already received the document in another form, [it] may be out of luck.’ ” Id. (quoting Adam J. Levitt & Scott J. Farrell, Taming the Metadata Beast, N.Y.L.J., May 16, 2008, at 4). In this case, the parties' Joint Discovery Plan allows for defendant to have made its production entirely by paper, and plaintiff did not request production of documents in native format and with metadata until after defendant had already completed its entire production. See generallyPl.'s First Demand for the Prod. of Docs. to Def., Mot. to Compel Ex. E. Furthermore, the production of approximately 500 emails by defendant in paper form was by no means unreasonably burdensome on plaintiff. See Aguilar, 255 F.R.D. at 360 (denying request to produce metadata for production consisting of no more than 500 emails); but c.f. PSEG Power N.Y., Inc. v. Alberici Constructors, Inc., No. 05-CV-657, 2007 WL 2687670, 2007 U.S. Dist. LEXIS 66767 (N.D.N.Y. Sept. 7, 2007) (ordering reproduction of 3,000 emails composed of more than 211,000 hardcopy pages, about which parties agreed that a technical glitch caused certain attachments to be separated from their corresponding emails during production). In sum, because plaintiff largely seeks documents pertaining to an unpleaded claim, defendant was permitted by the Joint Discovery Plan to make its production entirely in paper form, plaintiff did not originally request ESI in native format with metadata, and plaintiff long ago sorted and fully parsed the roughly 500 emails produced by defendant, I find that the burden of ordering defendant to reproduce responsive ESI in native format with metadata substantially outweighs any alleged benefit of such to plaintiff. However, in the interest of avoiding a potential third round of this dispute, I do hereby order that all future production of responsive ESI, if any, be made in native format and with its accompanying metadata, to the extent the producing party possesses such. See In re Payment Card Interchange, 2007 WL 121426, at *5, 2007 U.S. Dist. LEXIS 2650, at *18 (denying motion to reproduce ESI with metadata but ordering that future production include ESI). 3. Plaintiff’s Request for Discovery on Discovery Plaintiff’s remaining requests are as follows. Due to alleged production deficiencies, defendant should be compelled to provide: a sworn statement detailing its search methodology for all documents responsive to plaintiff’s requests; a copy of any legal hold instruction pertaining to this litigation and to forensically preserve responsive ESI for defendant custodians; the names of all custodians from whom ESI was collected together with corresponding bates number ranges per custodian; and the location of all relevant ESI as required by FRCP 26(a)(1)(A)(ii). These requests are rightly collectively characterized as requests for discovery on discovery. None of these requests bear on plaintiff’s underlying claim; rather, they represent plaintiff’s meandering attempt to prove defendant’s noncompliance with its discovery obligations.[4]As such, ordering defendant to comply with these requests would by no means lead to the discovery of information relevant to this case. See Fed. R. Civ. P. 26(b)(1). To the contrary, plaintiff’s request for discovery on discovery would only further needlessly delay a case that is already more than two years old. Plaintiff fails to offer anything more than hypothetical inferences in support of its claim that defendant has engaged in the sort of misconduct that would merit discovery on discovery. As the Court has several times conveyed to plaintiff’s counsel, it is time for this case to move forward. In the event that witness depositions reveal that defendant has, in fact, failed to comply with its discovery obligations, both parties can be assured that the Court will respond swiftly and accordingly. In the absence of such circumstances, plaintiff’s request for discovery on discovery is entirely unwarranted. *5 In light of the foregoing, I find each of plaintiff’s arguments to be without merit, and therefore hereby deny plaintiff’s motion to compel in its entirety. B. Defendant’s Motion for a Protective Order Defendant has cross-motioned for a protective order containing two provisions: (1) that the notice of deposition served on defendant by plaintiff on or about September 2, 2010, be vacated pursuant to FRCP 30(b)(6); and (2) that plaintiff be prohibited from seeking any further depositions in this matter, other than the individual depositions already noticed by plaintiff, without first obtaining leave of the Court.[5] Notice of Mot. for Prot. Order 1–2, ECF No. 36; see also Mem. in Opp. to Mot. to Compel 8–20. Plaintiff’s September 2010 notice seeks to depose the person or people with knowledge of defendant’s compliance with its discovery obligations. See Notice of Deposition of Sept. 2, 2010, Sheridan Decl. Ex. 9, ECF No. 39. Pursuant to FRCP 26(c), the Court may, for good cause, issue an order to protect a party or person from, inter alia, undue burden, or “specifying terms, including time and place, for the disclosure or discovery....” Fed. R. Civ. P. 26(c)(1)(B). Deposing individuals with knowledge of defendant’s compliance with its discovery obligations would amount to nothing more than discovery on discovery. As already discussed supra at Part II.A.3., plaintiff’s efforts to obtain discovery on discovery lack merit and only stand to further needlessly delay an already protracted matter. Accordingly, defendant’s cross-motion for a protective order quashing plaintiff’s September 2, 2010, notice of deposition, and prohibiting plaintiff from seeking any further depositions, other than those already noticed, without first obtaining leave of the Court is hereby granted. C. Defendant’s Motion to Strike Expert Opinion Defendant has also cross-moved to strike the expert opinion of Yalkin Demirkaya submitted by plaintiff in support of its motion to compel. Mem. in Opp. to Mot. to Compel 21–22. Mr. Demirkaya’s expert opinion, commissioned by plaintiff, purports to illustrate and explain facts that support plaintiff’s claim that defendant has willfully, and in bad faith, failed to comply with its paper discovery obligations. See Expert Opinion of Yalkin Demirkaya (“Demirkaya Opinion”) ¶¶ 4–6, Mot. to Compel Ex. M. Mr. Demirkaya concludes that, “I do not believe that defendant was operating in good faith in collecting and tendering the production to the plaintiffs,” and that, “[i]t is my opinion that the defendant acted in bad faith and their conduct was egregious and intentional.” Id. ¶ 26. Defendant argues that Mr. Demirkaya’s expert opinion should be stricken because it offers analysis of a party’s legal obligations in a particular case without any requisite legal expertise, is not based on a reliable investigation, is not the product of reliable principles and methods, and is based on hearsay. Mem. in Opp. to Mot. to Compel 21–22. In support of their respective arguments, plaintiff and defendant cite to various federal cases that discuss Federal Rule of Evidence (“FRE”) 702, which requires that an expert opinion be based upon sufficient facts or data, and that it be the product of reliable principles and methods. Id. at 21–22; Pl.'s Reply Mem. 9; Fed. R. Evid. 702. *6 “In evaluating the admissibility of expert testimony, [the Second Circuit] requires the exclusion of testimony [that] states a legal conclusion.” United States v. Feliciano, 223 F.3d 102, 121 (2d Cir. 2000) (second alteration in original). Although FRE 704 does not forbid all testimony concerning ultimate issues, id., “this circuit is in accord with other circuits in requiring exclusion of expert testimony that expresses a legal conclusion.” Hygh v. Jacobs, 961 F.2d 359, 363 (2d Cir. 1992). Indeed, “the rule prohibiting experts from providing their legal opinions or conclusions is ‘so wellestablished that it is often deemed a basic premise or assumption of the evidence law—a kind of axiomatic principle.’ ” In re Initial Pub. Offering Sec. Litig., 174 F.Supp.2d 61, 64 (S.D.N.Y. 2001) (quoting Thomas Baker, The Impropriety of Expert Witness Testimony on the Law, 40 U. KAN. L. REV. 325, 352 (1992)). Mr. Demirkaya’s report is littered with unqualified legal conclusions from beginning to end. E.g. Demirkaya Opinion ¶¶ 4, 6, 8, 26. Despite the truism that, “[l]egal citation belongs in parties' briefs, not in experts' opinions,” Fogarazzo v. Lehman Bros., No. 03-CV-5194, 2005 WL 361205, at *4, 2005 U.S. Dist. LEXIS 2128 at *16 (S.D.N.Y. Feb. 16, 2005), Mr. Demirkaya attempts to apply the facts of this case to an array of federal case precedent and the FRCP. E.g. Demirkaya Opinion ¶¶ 6, 8, 9, 10, 13, 17, 26. In fact, Mr. Demirkaya notes early in his report that he was retained by plaintiff’s counsel in order to analyze, “whether the discovery was undertaken and conducted with professional care and judgment and more importantly if there was any evidence of misconduct committed by defendant during discovery production.” Id. ¶ 4 (emphasis added). The bulk of Mr. Demirkaya’s report consists of similar legal analysis and conclusions, effectively rendering his opinion a would-be brief masquerading as an expert opinion.[6] There can be no doubt that all such legal analysis is inadmissible and should be stricken. As for the remaining portions of Mr. Demirkaya’s opinion that are not explicit legal conclusions, I find them to be substantially identical to the unfounded and hypothetical allegations and inferences made by plaintiff’s counsel in their motion to compel and previous deficiency notice. I therefore do not believe that any portion of Mr. Demirkaya’s expert opinion is admissible or helpful to understanding the claims made in plaintiff’s motion to compel. See, e.g., Boucher v. United States Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (citing Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962)) (noting judges' broad discretion in admission or exclusion of expert evidence). Additionally, it bears noting that, irrespective of its permissibility, Mr. Demirkaya’s opinion is also nothing more than the type of discovery on discovery that adds no probative value to plaintiff’s underlying claim that I have already prohibited. Supra Part II.A.3. Finally, the Court shares defendant’s position as to Mr. Demirkaya’s lack of legal qualifications and professional impartiality. See, e.g., Sheridan Decl. ¶¶ 14–17. In light of the foregoing, defendant’s motion to strike the expert opinion of Mr. Demirkaya is hereby granted. D. Defendant’s Request for Attorneys' Fees and Costs *7 Finally, defendant requests that it be granted its attorneys' fees and costs in defending against plaintiff’s motion to compel. Mem. in Opp. to Mot. to Compel 23–24. Plaintiff does not contest defendant’s motion, nor does it cross-motion for collection of its own fees. Federal Rule of Civil Procedure 37(a)(5)(B) essentially mandates that if the party opposing a motion to compel prevails, it is to be awarded its reasonable attorneys' fees and costs incurred in opposing the motion, unless the motion “was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). The adverse or losing party must first be given an opportunity to be heard on the issue of paying its opponent’s costs. Fed. R. Civ. P. 37(a)(5)(B). As already discussed, plaintiff’s motion to compel is unfounded and based upon little more than what they would like to see, rather than upon what defendant actually has. As the prevailing party on the instant motions, defendant is therefore entitled to the reasonable attorneys' fees and costs incurred in defending against plaintiff’s motion to compel. See Rahman v. Smith & Wollensky Rest. Group, Inc., No. 06-CV-6198, 2008 WL 3823958, at *4, 2008 U.S. Dist. LEXIS 61785, at *10 (S.D.N.Y. Aug. 14, 2008); Carovski v. Jordan, No. 06-CV-716S, 2008 WL 2827477, at *4, 2008 U.S. Dist. LEXIS 56180 at *16 (W.D.N.Y. July 21, 2008). In light of the fact that the arguments made in plaintiff’s motion are essentially identical to those made, and subsequently dealt with at length, in its prior deficiency notice, I find that plaintiff’s motion to compel was not substantially justified. Plaintiff’s motion to compel is essentially duplicative of the Court and the parties' efforts to resolve this same dispute months ago. Accordingly, defendant’s motion for attorneys' fees and costs is hereby granted to the extent that defendant is permitted to submit a particularized application for costs, to which plaintiff may respond. III. CONCLUSION In summary, I hereby order that: (1) plaintiff’s motion to compel is denied in its entirety; (2) defendant’s motion for a protective order is granted; (3) defendant’s motion to strike plaintiff’s expert opinion is granted; and (4) defendant’s motion for attorneys' fees and costs is granted to the extent that defendant is permitted to submit a particularized application for costs, to which plaintiff may respond.[7] Defense counsel is to submit an affidavit of its reasonable attorneys' fees and costs associated with defending against plaintiff’s motion to compel within fourteen (14) days of entry of this Order. Plaintiff’s response to this fee application shall be due within twenty-eight (28) days of entry of this Order. The Court shall then deem the fee application submitted and rule upon the request for expenses therein. Finally, the parties are ordered to submit a joint deposition schedule, including a list of all persons to be deposed, within fourteen (14) days of entry of this Order. All depositions are to be completed by July 31, 2011. SO ORDERED. Footnotes [1] As noted by defendant, these are the same manners by which plaintiff confirmed that its production was complete. Mem. in Opp. to Mot. to Compel 21; see also Fed. R. Civ. P. 26(g)(1) (requiring parties to sign disclosures in order to certify that “to the best of the signer’s knowledge, information and belief, formed after a reasonable inquiry, the disclosure is complete and correct.”). [2] Plaintiff cites two Second Circuit Court of Appeals cases in support of its attempt to obtain pre-Access Agreement discovery, TVT Records v. The Island Def Jam Music Group, 412 F.3d 82, 90 (2d Cir. 2005), and Merrill Lynch & Co. Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 183–84 (2d Cir. 2007). Pl.'s Reply Mem. of Law in Supp. of its Mot. to Compel the Prod. of Docs. and in Opp. to Def.'s Mot. to Strike the Expert Opinion of Ylakin Demirkaya and for a Protective Order (“Pl.'s Reply Mem.”) 3, ECF No. 31. Both of these cases, however, stand for the proposition that, under New York law, there is a clear distinction between a breach of contract claim and a fraudulent inducement claim. See, e.g., Merrill Lynch, 500 F.3d at 184. This proposition is completely contrary to plaintiff’s argument, as it confirms that plaintiff would have had to have already pleaded a separate and distinct fraud claim in order to now be entitled to pre-Access Agreement discovery, which it has not. I also note that plaintiff’s explanation as to why it has not yet sought to amend its complaint in order to add a fraud claim is unavailing. Pl.'s Reply Mem. 3 n.1. Under no circumstances would it be appropriate to allow a party to engage in discovery as to an unpleaded and entirely distinct claim. [3] “Metadata, frequently referred to as ‘data about data,’ is electronically-stored evidence that describes the ‘history, tracking, or management of an electronic document.’ ” Aguilar v. Immigration & Customs Enforcement Div., 255 F.R.D. 350, 354 (S.D.N.Y. 2008) (quoting Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 647 (D. Kan. 2005)). [4] To the extent that plaintiff argues that this discovery on discovery is relevant to its unpleaded fraud claim, I have already explained supra why this argument is unavailing. [5] Defendant also requests all costs and fees, including attorneys' fees, associated with the making of this motion. Notice of Mot. for Protective Order 2. Defendant’s request for costs and fees associated with each of the instant motions is discussed infra at Part II.D. [6] See also Demirkaya Opinion ¶ 6 (“[W]e have identified numerous ‘red flags’ that were telltale signs of gross deviation from what is required by applicable rules.”); id. ¶ 9 (“Considering the ‘native format’ production is required by Federal Rules of Civil Procedure....”); id. ¶ 26 (“It is my opinion that the defendant acted in bad faith and their conduct was egregious and intentional.”). [7] As noted supra at 9, I also order that all future production of responsive ESI, if any, be made in native format and with its accompanying metadata, to the extent the producing party possesses such.